Publications / Planning and Environment
WHO SHOULD READ THIS
- In-house Counsel, those in Governance roles, policy advisers and authorised persons within Local Government.
THINGS YOU NEED TO KNOW
- This case has highlighted the issue of impartiality of decision making within Local Governments. It is important to recognise that people have specific roles and responsibilities and that in certain circumstances, those roles overlap in a way which may encourage bias, or an apprehension of bias.
WHAT YOU NEED TO DO
- Consider internal systems and procedures so that officers are not performing overlapping roles which may encourage bias, or an apprehension of bias.
A recent High Court decision reiterates the importance of minimising the risk of apprehended bias in local government decision making processes. The case concerned a decision by the Knox Domestic Animals Act Committee of the Knox City Council (Council) that a dog owned by the Appellant, Ms Isbester, be destroyed.
The primary issue for consideration by the High Court was whether the circumstances surrounding the decision gave rise to a reasonable apprehension of bias.
The Appellant was charged with offences under section 29 of the Domestic Animals Act 1994 (Vic) (Act) arising out of attacks by her dogs on members of the public and other dogs. Section 84P(e) of the Act provides the Council with the power to destroy a dog where its owner has been found guilty of an offence under section 29.
As was Council's practice, a panel of three Council officers were arranged to hear the matter. Importantly, Council’s Coordinator of Local Laws, Ms Hughes, who had been involved in the investigation of the attacks was a member of the panel. In cross examination she agreed that she had played a material part in the decision to have the dog destroyed.
The Appellant sought judicial review of the decision to have the dog destroyed and orders of prohibition in the Supreme Court of Victoria. She was unsuccessful in that instance.
The Appellant then appealed to the Court of Appeal of the Supreme Court of Victoria. In dismissing the appeal, the Court of Appeal found that the requirement that there be an absence of personal interest in the decision, and a willingness to give genuine and appropriate consideration to the Appellant’s submissions could be satisfied, even where a decision maker has been involved in the earlier prosecution.
The Court of Appeal held that a fair-minded observer would not apprehend a disqualifying predisposition from this fact alone.
The Appellant further appealed to the High Court for reasons of natural justice, relying on the principle laid out in Ebner v Official Trustee in Bankruptcy  HCA 63 that ‘a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question required to be determined.’
The Appellant argued that it could reasonably have been apprehended that Ms Hughes had encouraged bias by virtue of her involvement in the earlier investigation and charging of the Appellant.
The High Court unanimously held that Ms Hughes should not have been involved in the decision making process on the basis that a fair-minded observer might reasonably apprehend that Ms Hughes might not have brought an impartial mind to the decision regarding the destruction of the dog.
The Court explained that the test in Ebner involved two steps:
- identification of what might lead a decision maker to decide a case, other than on its legal and factual merits, and
- articulation of the logical connection between that interest and the feared deviation from the course of deciding the case on its merits.
Whilst Ms Hughes had acted in her professional capacity throughout the decision making process, it was not realistic to assume that her interest came to an end when the charges against the Appellant were determined.
The High Court upheld the appeal, ordering that the decision of Council be quashed and that Council pay the Appellant’s costs of the original proceeding, as well as the subsequent appeals.
This case serves as an important reminder to local governments to carefully implement internal policies that minimise the risk of local government officers acting in dual roles of investigator and decision maker. Internal procedures which allow for those dual roles may encourage bias, or an apprehension of bias in decision making.
Focus covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. Focus is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.